Citation NR: 9615135
Decision Date: 05/31/96 Archive Date: 06/12/96
DOCKET NO. 94-33 313 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to service connection for vertigo.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
INTRODUCTION
The veteran served on active duty from February 1966 to
February 1968. This case comes before the Board of Veterans'
Appeals (hereinafter Board) on appeal from the Department of
Veterans Affairs Regional Office in Nashville, Tennessee
(hereinafter RO).
Initially, the Board notes that the issue of entitlement to
service connection for vertigo was originally denied by a
rating action in August 1991, and the veteran was notified of
this denial by the RO in September 1991. In November 1991,
the veteran’s representative took issue with this denial, and
in a April 1992 decision, the Board referred the issue of
entitlement to service connection for vertigo to the RO for
appropriate disposition. No action was taken on this issue
until a rating action in February 1994, which denied
entitlement to service connection for labyrinthitis and
dizziness. The Board finds this action to be a continuation
of the original action in August 1991, and therefore, the
issue as styled above is correct.
REMAND
The veteran contends that he currently experiences vertigo in
conjunction with his service-connected bilateral hearing loss
and tinnitus, secondary to acoustic trauma he experienced
while in service. For the reasons stated below, the Board
finds that further development of the evidence is needed
prior to adjudication of this issue.
The United States Court of Veterans Appeals (hereinafter
Court) has held that the "fulfillment of the statutory duty
to assist . . . includes the conduct of a thorough and
contemporaneous medical examination . . . so that the
evaluation of the claimed disability will be a fully informed
one." Green v. Derwinski, 1 Vet.App. 121, 124 (1991). As
noted above, the veteran contends that entitlement to service
connection for vertigo in conjunction with his
service-connected bilateral hearing loss and tinnitus,
secondary to acoustic trauma he experienced while in service
is warranted. The Board concludes that an additional
Department of Veterans Affairs (hereinafter VA) examination
by an ear, nose, and throat specialist would provide a record
upon which a fair, equitable, and procedurally correct
decision on the veteran's claim for entitlement to service
connection for vertigo on appeal can be made.
38 C.F.R. §§ 3.326, 3.327 (1995).
Further, in Allen v. Brown, 7 Vet.App. 439 (1994) (en banc),
the Court held that where service connection is sought on a
secondary basis, service connection could be granted for a
disability which was not only proximately due to or the
result of a service-connected condition, but could also be
granted where a service-connected disability had aggravated a
nonservice-connected disability, with compensation being paid
for the amount of disability which exceeded "the degree of
disability existing prior to the aggravation." The Court
held, in part, that " . . . pursuant to § 1110 and
§ 3.310(a), when aggravation of a veteran's
nonservice-connected condition is proximately due to or the
result of a service-connected condition, such veteran shall
be compensated for the degree of disability (but only that
degree) over and above the degree of disability existing
prior to the aggravation." Id. at 448. Allen is pertinent
to the issue on appeal for entitlement to service connection
for vertigo as it is being sought on a secondary basis.
In light of the Board’s finding that further medical
development is necessary and the Court’s decision in Allen,
the case is remanded to the RO for the following actions:
1. All pertinent treatment records from
private and VA sources subsequent to
November 1993 should be obtained and
associated with the claims file.
2. Thereafter, the veteran should be
afforded a VA examination by an ear,
nose, and throat specialist to determine
the etiology of vertigo, if found. All
pertinent symptomatology and findings
should be reported in detail. Any
indicated diagnostic tests and studies,
to include an electronystagmograph,
should be accomplished. The examiner
should express an opinion as to the
etiology of the veteran's vertigo.
Opinions should also be proffered as to
whether this disorder is related to the
veteran's service-connected disorders. A
further opinion should be provided as to
whether the veteran's service-connected
disorders aggravate any vertigo found.
The examiner should address each of the
following medical issues: (a) the
baseline manifestations which are due to
the effects of vertigo; (b) the increased
manifestations which, in the examiner’s
opinion, are proximately due to the
service-connected disability based on
medical considerations; and (c) the
medical considerations supporting an
opinion that increased manifestations of
vertigo are proximately due to a
service-connected disability. The claims
file must be made available to the
examiner prior to the examination to
facilitate a thorough, longitudinal
review of the evidence.
3. The RO should review the claims
folder and ensure that all of the
foregoing development actions have been
conducted and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the
examination report. If the report does
not include all test reports, special
studies, or fully detailed descriptions
of all pathology or adequate responses to
the specific opinions requested, the
report must be returned to the examiner
for corrective action. 38 C.F.R. § 4.2
(1995). “If the [examination] report does
not contain sufficient detail it is
incumbent upon the rating board to return
the report as inadequate for evaluation
purposes.” Green v. Derwinski, 1.
Vet.App. 121, 124 (1991); Abernathy v.
Principi, 3 Vet.App. 461, 464 (1992);
Ardison v. Brown, 6 Vet.App. 405, 407
(1994).
Thereafter, if the issue on remand remains denied, a
supplemental statement of the case should be provided to the
veteran and his representative. The supplemental statement
of the case should provide a discussion of the evidence
considered, as well as a recitation of pertinent laws and
regulations applicable to the issues on appeal, to include
38 U.S.C.A. § 3.310 (West 1991). After the veteran and his
representative have had an adequate opportunity to respond to
the supplemental statement of the case, the appeal should be
returned to the Board for appellate review. No action is
required by the veteran until he receives further notice.
JOY A. MCDONALD
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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